CALCRIM No. 810. Torture (Pen. Code, § 206)

Judicial Council of California Criminal Jury Instructions (2023 edition)

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810.Torture (Pen. Code, § 206)
The defendant is charged [in Count ] with torture [in violation of
Penal Code section 206].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant inflicted great bodily injury on someone else;
2. When inflicting the injury, the defendant intended to cause cruel
or extreme pain and suffering for the purpose of revenge,
extortion, persuasion, or for any sadistic purpose.
Great bodily injury means significant or substantial physical injury. It is
an injury that is greater than minor or moderate harm.
[It is not required that a victim actually suffer pain.]
[Someone acts for the purpose of extortion if he or she intends to (1)
obtain a person’s property with the person’s consent and (2) obtain the
person’s consent through the use of force or fear.]
[Someone acts for the purpose of extortion if he or she (1) intends to get
a public official to do an official act and (2) uses force or fear to make
the official do the act. An official act is an act that an officer does in his
or her official capacity using the authority of his or her public office.]
[Someone acts with a sadistic purpose if he or she intends to inflict pain
on someone else in order to experience pleasure himself or herself.]
New January 2006; Revised September 2020
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
Unlike murder by torture, the crime of torture does not require that the intent to
cause pain be premeditated or that any cruel or extreme pain be prolonged. (People
v. Pre (2004) 117 Cal.App.4th 413, 419-420 [11 Cal.Rptr.3d 739]; People v. Aguilar
(1997) 58 Cal.App.4th 1196, 1204-1205 [68 Cal.Rptr.2d 619]; People v. Vital
(1996) 45 Cal.App.4th 441, 444 [52 Cal.Rptr.2d 676].) Torture as defined in section
206 of the Penal Code focuses on the mental state of the perpetrator and not the
actual pain inflicted. (People v. Hale (1999) 75 Cal.App.4th 94, 108 [88 Cal.Rptr.2d
904].) Give the first bracketed paragraph on request if there is no proof that the
alleged victim actually suffered pain. (See Pen. Code, § 206.)
“Extortion” need not be defined for purposes of torture. (People v. Barrera (1993)
14 Cal.App.4th 1555, 1564 [18 Cal.Rptr.2d 395]; but see People v. Hill (1983) 141
Cal.App.3d 661, 668 [190 Cal.Rptr. 628] [term should be defined for kidnapping
under Pen. Code, § 209].) Nevertheless, either of the bracketed definitions of
extortion, and the related definition of “official act,” may be given on request if any
of these issues are raised in the case. (See Pen. Code, § 518 [defining “extortion”];
People v. Norris (1985) 40 Cal.3d 51, 55-56 [219 Cal.Rptr. 7, 706 P.2d 1141]
[defining “official act”].) Extortion may also be committed by using “the color of
official right” to make an official do an act. (Pen. Code, § 518; see Evans v. United
States (1992) 504 U.S. 255, 258 [112 S.Ct. 1881, 119 L.Ed.2d 57]; McCormick v.
United States (1990) 500 U.S. 257, 273 [111 S.Ct. 1807, 114 L.Ed.2d 307] [both
discussing common law definition of the term].) It appears that this type of extortion
would rarely occur in the context of torture, so it is excluded from this instruction.
“Sadistic purpose” may be defined on request. (See People v. Barrera, supra, 14
Cal.App.4th at p. 1564; People v. Raley (1992) 2 Cal.4th 870, 899-901 [8
Cal.Rptr.2d 678, 830 P.2d 712] [approving use of phrase in torture-murder and
special circumstances torture-murder instructions].)
The second sentence of the great bodily injury definition could result in error if the
prosecution improperly argues great bodily injury may be shown by greater than
minor injury alone. (Compare People v. Medellin (2020) 45 Cal.App.5th 519,
533-535 [258 Cal.Rptr.3d 867] [the definition was reasonably susceptible to
prosecutors erroneous argument that the injury need only be greater than minor]
with People v. Quinonez (2020) 46 Cal.App.5th 457, 466 [260 Cal.Rptr.3d 86]
[upholding instructions containing great bodily injury definition as written].)
Related Instructions
First degree murder by torture defines torture differently for the purposes of murder.
See CALCRIM No. 521, Murder: Degrees.
Elements. Pen. Code, § 206.
Extortion Defined. Pen. Code, § 518.
Great Bodily Injury Defined. Pen. Code, § 12022.7(f); see, e.g., People v. Hale
(1999) 75 Cal.App.4th 94, 108 [88 Cal.Rptr.2d 904] [broken and smashed teeth,
split lip, and facial cut sufficient evidence of great bodily injury].
Cruel Pain Equivalent to Extreme or Severe Pain. People v. Aguilar (1997) 58
Cal.App.4th 1196, 1202 [68 Cal.Rptr.2d 619].
Intent. People v. Pre (2004) 117 Cal.App.4th 413, 419-420 [11 Cal.Rptr.3d 739];
People v. Hale (1999) 75 Cal.App.4th 94, 106-107 [88 Cal.Rptr.2d 904]; People
v. Jung (1999) 71 Cal.App.4th 1036, 1042-1043 [84 Cal.Rptr.2d 5]; see People
v. Aguilar (1997) 58 Cal.App.4th 1196, 1204-1206 [68 Cal.Rptr.2d 619] [neither
premeditation nor intent to inflict prolonged pain are elements of torture].
Sadistic Purpose Defined. People v. Raley (1992) 2 Cal.4th 870, 899-901 [8
Cal.Rptr.2d 678, 830 P.2d 712]; People v. Aguilar (1997) 58 Cal.App.4th 1196,
1202-1204 [68 Cal.Rptr.2d 619]; see People v. Healy (1993) 14 Cal.App.4th
1137, 1142 [18 Cal.Rptr.2d 274] [sexual element not required].
In People v. Martinez (2005) 125 Cal.App.4th 1035, 1042-1046 [23 Cal.Rptr.3d
508], the court held that none of the following offenses were lesser included
offenses to torture: assault with a deadly weapon (Pen. Code, § 245(a)(1)); corporal
injury on a cohabitant (Pen. Code, § 273.5); forcible rape (Pen. Code, § 261(a)(2));
forcible oral copulation (Pen. Code, § 287(c)); criminal threats (Pen. Code, § 422);
dissuading a witness by force or threats (Pen. Code, § 136.1(c)(1)); false
imprisonment by violence. (Pen. Code, § 236.)
The court did not decide whether assault with force likely to cause great bodily
injury is a lesser included offense to torture. (Id. at p. 1043-1044.)
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 92-95.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.15 (Matthew Bender).
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